USA - Taiwan Mutual Reciprocity

Legal Human Rights
1

I know that there are many visitors to this FORUM who have some degree of familiarity with US (and international) laws and treaties.

Can anyone provide some good references to treaties, agreements, communiques, laws, congressional acts, etc. that include both the USA and Taiwan, and can be interpreted to say that there should be mutual reciprocity in dealing with the rights and duties of each others citizens??

Obviously, I am looking for something that I can use in Court in Taiwan, when discussing USA citizens’ rights. I want to be able to say “Since the US allows Taiwan citizens living in the USA to do XxXxXx, then based on the provisions of TtTtTt and CcCcCc, there is of course a sound legal basis for asking for similar treatment for USA citizens living in Taiwan.”

Can anyone provide some expert insight into this matter?

2

Check out the Taiwan Relations Act. Probably one of the more enlightened pieces of US legislation.
It covers a lot of issues of recipocity including Taiwan status under INA, US court access, upholds validity of “all” other ROC treaties, “assimulative law” features, AIT-TECO authority. Not just the “defense” of Taiwan.

Bilateral Treaty of Taipei is there as well as SFPT and others. The termination of TT leaves the SFPT valid and some question marks of int’l law.

3 Shanghai Communiques are there.

Vienna Conventions on Treaties and Montevideo Convention. Basically a foundational collection of the basic documents for one to build upon.

Taiwan Documents Project

When viewing the TRA keep in mind that it is most remarkably consistent with the customary laws of SFPT. That was a true surprise of how much was so deeply embedded into TRA. It is so like the SFPT is a higher controlling authority of the TRA and Shanghai Communiques.

quote:
[url=http://www.adtdl.army.mil/cgi-bin/atdl.dll/fm/27-10/toc.htm]FM 27-10[/url]

The customary law of war is part of the law of the United States and, insofar as it is not inconsistent with any treaty to which this country is a party or with a controlling executive or legislative act, is binding upon the United States, citizens of the United States, and other persons serving this country.

3

I would appreciate specific references to Articles in the various legal documents, treaties, acts, etc. that you have mentioned, as well as your ANALYSIS of how (perhaps) my arguments might be framed.

For the benefit of the foreign community in Taiwan, now and in the future, I thank you.

4

Born of SFPT: Taiwan and Micronesia
Peter Rosenblatt is a former US Ambassador, WTO representative, and US attorney. This is the best expert centerpiece of my own parallel arguments of ‘insular law’ and Taiwan status of SFPT. His conclusion is for “One China” consensus of 1992.
It is not so obvious but the insular perspective is very strong. Stanley Roth once worked for him.

Stanley Roth Implicated
I wrote this being incensed over the events of the Free Compact…as I was researching the Taiwan status. It might sound “Neo-McCarthistic” but the antics of the Clinton appointees had just gone on too long for me by then. That was the straw that really broke the camel’s back and so I wrote the following on Taiwan status:

Insular Law and Taiwan Human Rights

Taiwan Status in US Courts

This is independent legal research and is truly fantastic for many points. The foremost is that the outcomes of TRA litigation is predicated upon the more favorable nationality claimed…ROC or PRC. The court just struggles, while those idiots at State and Interior kept so silent on “insular rights”. So what about “Taiwan nationality” under SFPT?

My “working theory” in gibberish Taiwan Status: Under Taiwan Relations Act

Even the CIA can’t decipher it yet.

Rep. Wexler’s “Self-determination Resolution”

How do you quote the Montevideo Convention and then call for “self-determination” which is for sub-sovereign status issues? Good job FAPA!!

Wexlar is the leader of the Taiwan Caucus being formed on April 25, 2002. Yes, Taiwanese will have more Congressional representation than the US citizens living in Taiwan! Including far more direct access for those Legislators in the ROC.

Better Perspective on SFPT

Western Press 2-28 Articles on “Mandate Status”

TSEA by the Backdoor?

Harvey Feldman corrected me on the “forbids” diplomatic relations in TRA. It is ambigious.

Harvey Feldman: Drafter of TRA

New England Law Review

Rubin and Rosenblatt are very good, Chen is just pushing “ROC is a soveriegn nation” crap again.

Who owns Taiwan: a search for international title, by Lung-chu Chen and W.M. Reisman of The Yale Law School. Yale Law Journal, Volume 81, Number 4, March 1972.

Human Rights, Yah right.

I am very sharply critical of any ROC propaganda which contravenes the US Constitution and FM 27-10. While I don’t agree with the “statusquo”, I must follow the supreme law of the land, and not ROC “legal opinions”. So DON’T think I am flaming him personally.

What about the SFPT?

UK Reports on 1950-51 Period of SFPT

Formosa Betrayed

Formosa Betrayed is written in strict accordance with FM 27-10. This is the legal handbook of the SFPT. The “law-making treaties” are the governing body of treaties for SFPT and FM 27-10 makes it decipherable. Especially any “interim status” of peace treaty cessions.

Bilateral Treaty Issues under SFPT

Don’t ignore the US-ROC Mutual Defense Treaty as its Notes are Dulles’ “effective territorial control” of Taiwan by the ROC. No sovereignty transfer means the MDT was especially designed to be concurrent to the SFPT. CKS attacked the Mainland from Taiwan without any US approval, the USA would pull the territorial rug right out from underneath him.

Taiwan Documents

On a theorectical plane, I would attack the issue from the perspective of immigration law. That is not just the Immigration and Nationality Act of 1952, but the entire case law spectrum of aliens.
SFPT interim cession most capriciously sandwiches Taiwan status outside the USA as an outlying possession because of the Chinese Exclusion Case but still inside the territorial jurisdiction of the Chinese Alien Rights Cases (Downes v. Bidwell). For any US immigration law purposes of TRA, these “Chinese aliens” are still being indefinitely detained by the Laws of War (eg. Geneva Convention). The “re-establishment” or “refoulement” of Chinese aliens of a Taiwan domicile was executively ordered by the Shanghai Communiques. But as the USA is also the Detaining Power of SFPT cession, there is a creation of an alien detention center coming within that special territorial jurisdiction. This is a Meize status alien being stopped on the border of Ellis Island.
Indefinite detention of innocent civilians cannot be so indefinitely continued under the One China policy, if operating as the Chinese Exclusion Act under the color of law. This is a parole status because of ambiguities of “Chinese nationality”. Under Johnson v. Eigentrager, it was ruled that friendly aliens so coming within the territorial jurisdiction have ascending rights of St. Paul, a citizen of Rome. Civis Romanus Sum, Jus Feciale. SFPT is self-executing for immigration cases of any lost nationality claims made under treaties ratified before Christmas, 1952.

5

[color=blue]Taiwan Relations Act - Sec. 4. (c)[/color]:

For all purposes, including actions in any court in the United States, the Congress approves the continuation in force of all treaties and other international agreements… entered into by the United States and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979, and in force between them on December 31, 1978, unless and until terminated in accordance with law.

[color=blue]Article VI 4 - TREATY OF FRIENDSHIP, COMMERCE AND NAVIGATION BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF CHINA[/color]

The nationals, corporations and associations of either High Contracting Party shall enjoy freedom of access to the courts of justice and to administrative tribunals and agencies in the territories of the other High Contracting Party, in all degrees of jurisdiction established by law, both in pursuit and in defense of their rights; shall be at liberty to choose and employ lawyers, interpreters and representatives in the prosecution and defense of their rights before such courts, tribunals and agencies; and shall be permitted to exercise all these rights and privileges, in conformity with the applicable laws and regulations, if any, which are or may hereafter be enforced by the duly constituted authorities, [color=red]on terms no less favorable than the terms which are or may hereafter be accorded to the nationals[/color], corporations and associations of such other High Contracting Party and no less favorable than are or may hereafter be accorded to the nationals, corporations and associations of any third country. The nationals, corporations and associations of either High Contract ing Party shall enjoy freedom of access to the courts of justice and to administrative tribunals and agencies in the territories of the other High Contracting Party, in all degrees of jurisdiction established by law, both in pursuit and in defense of their rights; shall be at liberty to choose and employ lawyers, interpreters and representatives in the prosecution and defense of their rights before such courts, tribunals and agencies; and shall be permitted to exercise all these rights and privileges, in conformity with the applicable laws and regulations, if any, which are or may hereafter be enforced by the duly constituted authorities, [color=red]on terms no less favorable than the terms which are or may hereafter be accorded to the nationals, corporations and associations of such other High Contracting Party[/color] and no less favorable than are or may hereafter be accorded to the nationals, corporations and associations of any third country.

As far as I know (and I could be wrong), the TREATY OF FRIENDSHIP, COMMERCE AND NAVIGATION BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF CHINA (Treaty) still applies by force of the Taiwan Relations Act.

A quick reading of the Treaty’s many clauses, in addition to the one provided as an example above, reveals that the principle of [color=red]national treatment[/color] rather than that of reciprocity is applied.

Any comments?

6

Actually, the Taiwan Relations Act (TRA) is US law and as such it is unilateral in nature and does not provide for reciprocity in the manner that Taiwan and US authorities deal with each others’ respective nationals.

The TRA does not, indeed, cannot, obligate the government of Taiwan to deal with US citizens and nationals in a reciprocal manner.

7

Actually, the Taiwan Relations Act (TRA) is US law and as such it is unilateral in nature and does not provide for reciprocity in the manner that Taiwan and US authorities deal with each others’ respective nationals.

The TRA does not, indeed, cannot, obligate the government of Taiwan to deal with US citizens and nationals in a reciprocal manner.[/quote]

Quite right. But at the end of the day, when all’s said and done, in the final analysis (is that enough clich

8

Well… Hmmm…

Yes, there are a number of instances where Taiwan purports to adopt the principle of reciprocity in dealing with foreign nationals. But Taiwan’s record of following this principle could lead one to conclude that Taiwan isn’t necessarily dead-set on reciprocity, although their may be a trend to place greater emphasis on reciprocity. I don’t know.

Under Taiwan law, there are four preconditions that must be met with respect to a final foreign judgment before a Taiwan court will recognize such foreign judgment and enforce the same. One of these preconditions to recognition is that the nation of the court which rendered the foreign judgment sought to be enforced in Taiwan also recognizes judgments rendered by Taiwan courts. In the past, this reciprocity requirement was the basis for Taiwan’s refusal to recognize many foreign judgments, as foreign nationals or corporations had to prove that the courts of their respective nations recognized Taiwan judgments… and absent a treaty or precedent, a foreign national could have considerable difficulty proving that the courts of his nation would recognize Taiwan judgments. In the last several years, however, Taiwan has begun to recognize foreign judgments provided the nation of the court from which the particular judgment was rendered does not actively refuse to recognize Taiwan judgments.

In another area where Taiwan policy is to treat foreign nationals in a reciprocal manner, foreign nationals may purchase certain types of real estate in Taiwan if they can show that Taiwanese nationals are permitted to purchase real estate in that foreign national’s country. With US citizens, we must show that the State where we are resident will permit Taiwanese to purchase real estate. When my wife and I purchased a house (unit) here in Taipei several years ago, we were unable to prove that Taiwan nationals could purchase real estate in my home state in the US. Now, first of all, this entire notion that I had to prove something that I believe was/is common knowledge to the Taiwan government was a bit frustrating… but nothing compared to my dealings with the Taiwanese beauracracy…

One of my colleagues, a Taiwan lawyer, and I translated the relevant provisions of my State’s statute into Chinese and I then had the translation notarized by AIT. I then submitted the notarized, translated statute to the Taipei City Governmant, and also to the Ministries of the Interior and Foriegn Affairs. Each of these entities refused my submission as proof that Taiwanese could purchase real-estate in my state… when I inquired as to what documentation would suffice, each entity responded identically with “we don’t know”. Thus, only my wife’s name appears on the deed to our home in Taipei.

Subsequently, a certain American newspaper/magazine reporter and long-time resident in Taiwan who is also from my home state purchased a home in Taichung and in his situation, he had several months to prove that our state permits Taiwanese people to purchase real estate, and as a result, our state is now on a “list” of only about 20 US states that Taiwan recognizes as allowing Taiwanese to purchase real estate.

As far as I’m concerned, this refusal by Taiwan to recognize the obvious, that Taiwanese are not prohibitted from purchasing or otherwise owning real estate virtually anywhere in the US is a spit in the American face… I mean, really, how many of Taiwan’s citizens own real property in the 50 United States? How many of Taiwan’s citizens have family who own real property in the 50 United States? How many of Taiwan’s government officials either personally own or have family members who own real property in the 50 United States?

Reciprocity? Hmmm?

9

Exactly. So what I am saying is this is nothing to do with law, but all to do with politics. The authorities, if they do not really want you to be able to do something, will make you prove to their undefined satisfaction something they know cannot really be proven. In order to prove that a Taiwanese person can buy property in England, I would have to prove there is no law against it. How do you prove the non existence of something ? So the requirement becomes that I must find a Taiwanese person in the UK who has done this ?

The ROC government does not appear to use principles to guide its actions. It merely decides what it wants to do, and does it. If the result is reciprocity, it’s a coincidence.

There is no concept of natural justice, which would for example provide for rights of audience at an immigration appeals tribunal, and the due process of law in all matters. There is no concept of the right to family life - “no your wife cannot join you”. There is no concept of the supremacy of international law over domestic law. There is no concept of racial discrimination. There is no rule of law as an American or British law student would understand the term. There is no concept that any protection under the law should be provided to anyone who is not an ROC citizen. There is no interest in the universal rights of humans wherever they happen to be situated. If you’re a foreigner and you enter Taiwan, you leave your human rights at the airport, and pick them up on your way out. All of these things are fundamental to Western jurisprudence. I don’t think the ROC has recognised “reciprocity” as a principle to be guided by, merely a coincidence of political decisions from time to time. And they will certainly make that argument in any attempt to force reciprocity upon them.

10

Which is why pressing for reciprocity via the Taiwan courts may well be an exercise in futility. :frowning:

Moreover, if the Treaty that I cited above is still in effect, and I believe it is, then at least with respect to US citizens, there is a legal basis for Taiwan to deny reciprocity. After all, Taiwan could argue, the US grants Taiwan citizens “only” national treatment.

11

Treaty of Friendship, Commerce, and Navigation. Entered into force November 30, 1948. 63 Stat. 1299; TIAS 1871; 6 Bevans 761; 25 UNTS 69. Pursuant to Section 6 of the Taiwan Relations Act, Pub. L. 96-8, 93 Stat, 14, and Executive Order 12143, 44 F.R. 37191, this Treaty which was concluded with the Taiwan authorities prior to January 1, 1979 is administered on a nongovernmental basis by the American Institute in Taiwan, a nonprofit District of Columbia corporation…

The Treaty is still in effect.